When is a person both dead and alive?

October 11th, 2013

Apparently in Ohio, when a probate court declares a person legally dead under the “Presumed Decedents Law” after having not been seen for five years. And what happens when the “presumed dead” person returns to court, and asks for a pronouncement of life? Apparently Ohio law can’t handle such a situation. And this bizarre situation ensues:

“[There’s a] man sitting in the courtroom, he appears to be in good health,” noted Judge Allan Davis on Monday. But by the end of the hearing, that man was dead.

He had also been dead when he walked in, though, so nothing really changed.

As Ryan Dunn of The Courier reported on Tuesday, Donald Eugene Miller Jr., formerly of Arcadia, Ohio, had been declared legally dead in 1994. In fact, Judge Davis was the one who issued that order. After a hearing at which Miller appeared (physically) in an effort to prove he was not actually dead, Davis ruled that despite this fairly compelling evidence of life, in the eyes of the law Miller would have to stay dead.

The Ohio law does provide for situations in which it is later “established that the presumed decedent is alive,” which is what Miller was hoping to show by bringing his body to court and proving he was still in it. A death decree can be vacated, at which point the presumed decedent’s status is elevated to “person erroneously presumed to be dead,” and he or she then has certain rights to recover property. (His ex-wife said she only opposed Miller’s motion because she didn’t want to have to pay anything back, and noted that he owes about $26,000 in child support.) The problem is that the law is pretty clear that this has to be done “within a three-year period from the date of the decree….” Since 19 is more than three, Miller is still dead.

“I don’t know where that leaves you,” the judge told him, “but you’re still deceased as far as the law is concerned.”

So he’s both dead and alive. Go figure. I may use something like this on my exam. If he had children, would they be considered heirs? If he had a life estate, with the remainder to his children, would the land revert back, because he is alive? Doubtful. But fun to torment 1Ls with.

Update: Will Baude writes in the comments below:

It looks like this used to come up a lot. (Search Westlaw for “presumed dead” and read some of the old Harvard case notes from 1890s-1910s). Apparently there’s a Supreme Court case too:  MARGARET CUNNIUS, now Margaret Smith, , v. READING SCHOOL DISTRICT (1905).

Justice White wrote for the Court:

2d. It remains only to consider the contention that even although there was power to enact the statute, it is nevertheless repugnant to the 14th Amendment, because it fails to provide notice as a prerequisite to the administration which the statute authorizes, and because of the absence from the statute of essential safeguards for the protection of the property of the absentee which is to be administered. Let it be conceded, as we think it must be, that the creation by a state law of an arbitrary and unreasonable presumption of death *477 resulting from absence for a brief period, would be a want of due process of law, and therefore repugnant to the 14th Amendment. Let it be further conceded, as we also think is essential, that a state law which did not provide adequate notice as prerequisite to the proceedings for the administration of the estate of an absentee would also be repugnant to the 14th Amendment. Again, let it be conceded that if a state law, in providing for the administration of the estate of an absentee, contained no adequate safeguards concerning property, and amounted, therefore, simply to authorizing the transfer of the property of the absentee to others that such a law would be repugnant to the 14th Amendment. We think none of these concessions are controlling in this case. So far as the period of absence provided by the statute in question, it certainly cannot be said to be unreasonable. So far as the notices which it directs to be issued, we think they were reasonable. As concerns the safeguards which the statute creates for the protection of the interest of the absentee in case he should return, we content ourselves with saying that we think, as construed by the Supreme Court of Pennsylvania, the provisions of the statute do not conflict with the 14th Amendment.

Cunnius v. Reading Sch. Dist, 198 U.S. 458, 476-77, 25 S. Ct. 721, 727, 49 L. Ed. 1125 (1905)

And more from the NY Times.

In an interview, Judge Davis said that the case was decided “in strict conformity with Ohio law,” but that it had led to “a bizarre set of circumstances.”

He suggested that Mr. Miller’s situation could lead the Ohio legislature to rethink the law. In the meantime, he said, Mr. Miller can appeal the decision or take the matter up with the Social Security Administration, which might have a different view of the law.

“Every time you think you’ve seen everything,” the judge said, “something like this comes along.”

And this reunion must’ve been lovely:

Ms. Miller, a nurse who cannot work because of a disability, said she was not trying to be vindictive toward her former husband, but could not afford to repay the money. She first learned that Mr. Miller was alive when he showed up in front of her home more than a year ago, sitting at a picnic table with his girlfriend. “I said, ‘Oh, my gosh!’ ” recalled Ms. Miller, who has married again to a man whose surname is also Miller. “It was civil the whole time. We were both very nice.”